Judge: Robert B. Broadbelt, Case: BC695428, Date: 2023-01-25 Tentative Ruling

Case Number: BC695428    Hearing Date: January 25, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Mia Boykin, Edward W. Boykin Construction Company, and E.W. Boykin Construction, Inc.

RESPONDING PARTIES:     Plaintiffs Jeffrey Thomas and Fortis Development, LLC              

Motion to Vacate and Set Aside the Court’s Orders re: Plaintiffs’ Motion for Summary Adjudication

The court considered the moving, opposition, and reply papers filed in connection with this motion.

REQUEST FOR JUDICIAL NOTICE

The court grants defendant Edward W. Boykin Construction Company’s request for judicial notice.  (Evid. Code, § 452, subd. (d).)

DISCUSSION

Plaintiffs Jeffrey Thomas (“Thomas”) and Fortis Development, LLC (“Fortis”) (collectively, “Plaintiffs”) filed the Third Amended Complaint in this action on September 26, 2019, against defendants Mia D. Boykin, Edward W. Boykin Construction Company, and E.W. Boykin Construction, Inc., alleging 17 causes of action.

On February 16, 2022, the court granted plaintiff Fortis’s motion for summary adjudication as to the 11th, 12th, and 17th causes of action.

On February 25, 2022, Plaintiffs dismissed the 1st through 10th and 13th through 16th causes of action without prejudice.  Plaintiff Thomas also filed a request for dismissal as to his 11th, 12th, and 17th causes of action, which was entered on March 18, 2022.

On May 17, 2022, the court entered judgment in favor of plaintiff Fortis and against defendants Mia Boykin and Edward W. Boykin Construction Company, jointly and severally, in the amount of $747,089.68.

Defendants Mia Boykin (“Boykin”), Edward W. Boykin Construction Company (“Edward Co.”) and E.W. Boykin Construction, Inc. now move the court for an order (1) vacating and setting aside the court’s February 16, 2022 order granting in part plaintiff Fortis’s motion for summary adjudication, and (2) resetting the motion for hearing to allow defendants the opportunity to file a supplemental opposition.

As a threshold matter, the court takes the hearing on this motion off calendar as to (1) defendant Boykin and (2) E.W. Boykin Construction, Inc.

First, Plaintiffs have notified the court that defendant Boykin filed a Chapter 7 bankruptcy case on October 26, 2022.  (Pl. Notice of Bankruptcy Filing, Ex. A.)  “Upon the filing of a bankruptcy proceeding, federal bankruptcy law imposes an automatic stay on all state and federal proceedings outside the bankruptcy court against the debtor and the debtor’s property.”  (Shaoxing County Huayue Import & Export v. Bhaumik (2011) 191 Cal.App. 4th 1189, 1196; 11 U.S.C. § 362, subd. (a).)  “‘[T]he automatic stay of judicial proceedings against a debtor in bankruptcy does not apply to nondebtor codefendants.’”  (Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 979.)  The court has not received any evidence establishing that Boykin’s bankruptcy proceedings are no longer in effect, and therefore finds that proceedings against Boykin are automatically stayed.  The court notes that it has not received evidence establishing that Edward Co. has also filed a bankruptcy proceeding.  The court therefore finds that all judicial proceedings are stayed as to defendant Boykin only, and orders that the hearing on this motion, as filed by defendant Boykin, is taken off calendar, without prejudice to being rescheduled if the bankruptcy stay is lifted as to defendant Mia Boykin.   

Second, Plaintiffs dismissed defendant E.W. Boykin Construction, Inc. from the Third Amended Complaint on March 18, 2022.  The court therefore takes the hearing on this motion off calendar, as filed by dismissed defendant E.W. Boykin Construction, Inc.

The court rules on the merits of the motion to vacate and set aside the court’s orders as filed by defendant Edward Co. below.

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  (Code Civ. Proc., §¿473, subd. (b).)  “To qualify for discretionary relief under section 473(b), the party seeking relief must show (1) a proper ground for relief, and (2) ‘the party has raised that ground in a procedurally proper manner, within any applicable time limits.’”  (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229.) 

The court finds that defendant Edward Co. has not met its burden to show that the court’s February 16, 2022 order granting partial summary adjudication in favor of plaintiff Fortis was the result of its mistake, inadvertence, surprise, or excusable neglect, and therefore denies Edward Co.’s motion.  (Code Civ. Proc., § 473, subd. (b).)

First, Edward Co. contends that the court granted plaintiff Fortis’s motion for summary adjudication due to (1) defendants’ failure to show that Boykin was a duly licensed contractor at all times, and (2) the court’s erroneous rejection of one case in favor of another.  (Mot., pp. 2:30-34, 3:19-23.)  The court finds that Edward Co. has not met its burden to establish that any failure to submit evidence showing Boykin’s licensing history was the result of mistake, inadvertence, surprise, or excusable neglect.  Edward Co. has not submitted any evidence explaining this failure, nor has Edward Co. set forth any facts that demonstrate that defendants’ neglect was “such as might have been the act of a reasonably prudent person under the same circumstances.”  (Henderson, supra, 187 Cal.App.4th at p. 230.)  Moreover, the court’s alleged error of law does not establish mistake, inadvertence, surprise, or excusable neglect on the part of Edward Co., and is therefore an insufficient ground for relief.

Second, Edward Co. contends that the motion for summary adjudication “was only brought against [Boykin]” and not against E.W. Boykin Construction, Inc.  (Mot., p. 3:10-13, 3:23-27.)  As set forth above, E.W. Boykin Construction, Inc. was dismissed from this action, and the court has not entered judgment in favor of Plaintiffs and against E.W. Boykin Construction, Inc.  (May 17, 2022 Judgment, p. 3:7-8 [“Judgment is entered in favor of plaintiff Fortis, and against Boykin and Edward Co.”].) 

To the extent that Edward Co. contends that the motion for summary adjudication was not brought against it and therefore judgment should be vacated, the court disagrees.  Plaintiff Fortis’s notice of motion for summary adjudication states that (1) Fortis was moving for summary adjudication of its first, eighth, eleventh, twelfth, and seventeenth causes of action, and (2) plaintiff Fortis specifically moved for summary adjudication, in part, on the ground that “Edward Co. did not hold a contractor’s license as required by the Business & Professions Code, which mandates the disgorgement of all funds received by Edward Co. and Boykin from Plaintiff.”  (July 8, 2021 Mot., p. 1:4-8, 1:14-16.)  The supporting memorandum of points and authorities further clarifies that Fortis sought “summary adjudication as to its (1) First Cause of Action for Breach of Contract against Boykin dba Edward Co.; (b) Eight[h] Cause of Action for Conversion against Boykin dba Edward Co.; (c) Eleventh Cause of Action for Breach of Contract against Boykin dba Edward Co.; (d) Twelfth Cause of Action for Breach of Guaranty against Boykin; and (e) Seventeenth Cause of Action for Disgorgement against Boykin dba Edward Co.”  (Mot., p. 2:20-24.)  Edward Co. does not point to any language in Fortis’s motion for summary adjudication that would indicate that Fortis did not bring its motion against Edward Co.

Finally, Edward Co. has not met its burden to show that equitable relief is warranted pursuant to Olivera v. Grace (1942) 19 Cal.2d 570, because Edward Co. has not presented any argument or competent evidence in support of this request.

The court therefore finds that Edward Co. has not met its burden to establish that the court’s February 16, 2022 order was taken against it through its mistake, inadvertence, surprise, or excusable neglect.  (Code Civ. Proc., § 473, subd. (b).)

ORDER

            The court orders that the hearing on the motion to vacate and set aside the court orders re: plaintiffs’ motion for summary adjudication, filed by defendant Mia Boykin, is taken off calendar, without prejudice to being rescheduled if the bankruptcy stay is lifted as to defendant Mia Boykin.  (11 U.S.C. § 362.)

The court orders that the motion to vacate and set aside the court orders re: plaintiffs’ motion for summary adjudication, filed by defendant E.W. Boykin Construction, Inc. is taken off calendar.

The court denies defendant Edward W. Boykin Construction Company’s motion to vacate and set aside the court orders re: plaintiffs’ motion for summary adjudication.  (Code Civ. Proc., § 473, subd. (b).)

The court orders plaintiffs Jeffrey Thomas and Fortis Development, LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 25, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court